Tamimi’s Challenge and Why It Will Go Nowhere

Ismail Alwan al-Tamimi, a lawyer from Wasit governorate, has mounted a legal challenge before the federal supreme court in which he accuses Prime Minister Nuri al-Maliki and Speaker of Parliament Usama al-Nujayfi for “unconstitutionally” appointing three deputy prime ministers (Salih al-Mutlak, Hussein al-Shahristani and Rosch Shways). Apart from its intrinsic interest as a case of a tentative constitutional challenge to the much-criticised practice of ethno-sectarian quotas in Iraq’s post-2003 political culture, the move will also draw some attention for the fact that Tamimi was also involved in a past challenge in 2010 against the then temporary speaker of parliament (Fuad Masum of the Kurdistan Alliance) for prolonging the “first session” of the parliament indefinitely and thereby postpone the political process – a matter where the federal supreme court actually sided with those who challenged the temporary speaker. Additionally, Tamimi works for the embattled governor of Kut/Wasit – a governorate dominated politically by Maliki’s own State of Law Alliance.

Alas, Tamimi’s challenge is a complete waste of time. His argument is that the constitutional enumeration of two vice-premiers belongs to the section of the constitution that related to the now bygone transitional period of 2005–2010. That in itself is of course correct. But the more important point is this: There is nothing constitutional that prevents Maliki from appointing any number of vice premiers if he thinks that is politically advisable. He can have one, three, or, for that matter, ten. Briefly, the constitution says nothing about the number of ministers, and only political wisdom will limit the imagination in this regard. Some will of course say that this limit has already been overstepped, but the point is that Maliki can constitutionally appoint ministers for the moon and the sun if he so desires, and then add deputies. What this all boils down to is that it is political not a constitutional question and if the prime minister wants to appoint a ludicrous number of placemen then it is his prerogative to do so and it is the role of the parliament – not the federal supreme court – to pass its verdict.

Truly judicial issues that remain connected to the formation of the second Maliki government are firstly a number of unconstitutional replacements of deputies who went on to become ministers, and, secondly, the unconstitutional use of past members of the presidency council (Adel Abd al-Mahdi and Tareq al-Hashemi) in a new role as temporary vice-presidents for the ordinary president without any parliamentary approval. (Talabani says he has issued an order for them to “stay in their jobs” but he has no constitutional authority to do so and in any case the “deputy of the president” and the “deputy of the president in the presidential council” are two completely different jobs that have no relationship to each other.*) It should be added that within the cluster of cases relating to replacement deputies one can make a similar sub-typology to distinguish between cases that are truly within the judicial and constitutional sphere (which relate mainly to changing the governorate of a deputy during the replacement), and those that are not strictly speaking against the law on replacement of candidate but instead relate to the number of votes obtained by a candidate under the open-list system. The latter cannot be challenged before the federal supreme court even though some of these cases clearly do involve deputies who received a miniscule number of personal votes and as such constitute an insult to the Iraqi electorate, if nothing else.

In any case, even if this second group of truly judicial/constitutional cases may offer a more promising avenue for criticising the seemingly endemic cronyism of Iraq’s new political system, it is unclear whether the federal supreme court would be up to the challenge of tackling any such cases in a mature fashion. Indeed, in the case of the deputy replacements it is unclear who has the right to mount a challenge within thirty days of the parliamentary ruling on the issue – the constitution just establishes in article 52 that such a right at least exists. So far at least, despite growing popular unrest across the country, there are worringly few signs that the Iraqi political elite is beginning to realise that the protests are not only about local councils and governors, but also about the way politicians perform at the national level in Baghdad. Perhaps someone who can rouse them from their sleep is the Grand Ayatollah Ali al-Sistani? For the second time in a few weeks he has reportedly sided with those demonstrations that Maliki blamed on “Baathists”: First he expressed sympathy for the protests in a public announcement (bayan) dated 26 February; today there are reports that he refuses to meet with any government officials pending an improvement in the general sitution.

12 Responses to “Tamimi’s Challenge and Why It Will Go Nowhere”

Santanasaid

Regarding your comment at the end where you mention that the continued candidacy of Khuzaiee is what is holding up the ratification of Hashimi and Abdul-Mahdi- this is true but also an excuse by SOL – see Maliki and Talabani want this delay to keep Hashimi and Adel on ice and not to raise hell about Maliki’s abuses or about Mam Jalal’s fiery speeches so it won’t jeapordize their elections to VPs again (sort of blackmail)…at the end they will do it but Maliki wants them quiet right now…at some point if more delays occur I can see Hashimi throwing in the towel and joining Allawi in the opposition.

Shwan Fatahsaid

Would be interesting to hear your thoughts on Iraqiya MP Talal Al-Zuba3i collecting 80 signatures so far in asking for the removal of Mohammed Al-Tamim (also from Iraqiya) as Minister of Education. Tamim is a neo-Ba’athist (sometimes the term is confused with Iraqi nationalist) and is being accused of awarding contracts to his family members. His deputy also handed his resignation recently. Would be nice to read your opinions on the infighting going in Al-Iraqiyah right now. I am sure you have heard of Hassan Alawi and 7 others leaving Iraqiya. Not worth a piece in your blog?

Jasonsaid

Reidar Vissersaid

Jason, I’m surprised that you are taking sides with the 325 deputies who have opted to close ranks against the people and the constitution. Far from being a trifling matter, this issue is about the difference between a constitutional democracy and an autocracy.

Shwan, the subject about splits in Iraqiyya has been there at least since the days leading up to the formation of the Maliki government, when I think Kazim al-Shammari vowed to take 30 Iraqiyya deputies with him into government. The “White Iraqiyya” secession has also been long in the making, but as of today it remains numerically insignificant. We will see whether this latest conflict eventually produces further defections but I generally try to avoid writing rumour stories and prefer to wait with commenting until there is an actual, verifiable outcome.

Santanasaid

I tend to agree with you that Hashimi should just go into the opposition straight away but you must also consider the fact that there isn’t a whole lot of Iraqiya left to have a “bite” or to scare SOL to take a more conciliatory position VS their current attempts to run the whole show as they please….had Iraqiya gone into the opposition when they had 91 deputies …now the number is looking more like 60.Do you still think it is a good idea?

Reidar Vissersaid

Absolutely. Never mind the numbers in parliament, the party would finally be free to speak its mind and realign with millions of Iraqis outside parliament. I think that would be a lot better than many of the other ideas floating around, including the latest scheme to nominate Ayad Allawi as the next secretary-general of the Arab League!

Allawi should present himself to the Shia voters as he actually is, the one with principles who lost by cheating, echoeing Shia historical struggle. He does not need to do much for Sunni votes.
The question is: What will happen If the policy council gets approved by parliament NOW? Will Iraqiya be able to influence its composition or will the splinter groups clamour for symbolic positions and trump any appearance of unity of purpose?

Mohammedsaid

While I strictly condemn any deviation from the constitution, and I am outraged by the flagrant illegal appointments of MPs, I don’t see that Allawi can every really win this political struggle.

Your point about Allawi presenting himself to the Shia voters “as he actually is” and not needing to do much for sunni votes is what I would call a political oxymoron. Simply, in Iraq’s political climate, you cannot get both of these votes. Allawi could not, nor could al-Maliki. People want to say that voters are not sectarian, but all the polical analysis shows that by and large, their voting was pretty sectarian.

Iraq does not live in a vacuum. Everybody can see what has happened to Bahrain when the shiite majority asked for their rights. Allawi’s buddy King Abdalla of Saudi Arabia basically told the Bahraini King, “either you crush the shiites or I will.”

Through a big portion of the shiite lens of Iraqis, Allawi is viewed as an “Uncle Tom” (A shiite who is too cozy with people who would mean to deprive shiites of their rights). It is the exact Uncle Tom image that makes Allawi appealing to enough sunnis. You can’t have it both ways.

That is not to say that the Iraqi electorate only cares about sect. They are fed up with corruption and incompetence. The problem is that al-Maliki’s preference for selecting people in the executive branch that he “trusts” means he has a very poorly educated pool of people that he can pick from (mainly a bunch of dawa party loyalists who probably have fake degrees and cant do arithmetics beyond 1+1) If every state of law guy was as educated as Shahristani, things would be different.

That’s just the seat-winning provinces, some 360,000 votes altogether. Sunni minorities all of them? I don’t think so. Remember also that this result came at a time when a ferocious witch hunt against any people with conceivable ties to the Baath party was conducted across the south by the Shiite religious parties.

It is interesting that you should mention Bahrain as an issue in Iraqi politics by the way. I remember I was watching Iraqi television when those protests began escalating some weeks ago. ISCI’s television station (Al-Forat) had 24/7 coverage of Bahrain. On the other hand, Iraqiyya, the supposedly government-controlled channel, remained entirely focused on Iraqi affairs, I think with a discsussion of the budget featuring an extremely secular-looking panel. Again, many of these people are probably Shiites who may well have voted State of Law, but that doesn’t mean Bahrain and pan-Shiite issues are uppermost in their minds.

Salaam Mohammad,
We have different epistemologies (sense of reality), yours is static, mine is dynamic. Let me explain.
I don’t disagree with you that the Iraqi votes are largely along sectarian lines now; on a previous occasion I compared Iraqi votes with Germany and the alignment of Catholic votes with the Christian Democrats and concluded that there will always be some sectarian pattern. However, I tie the strength of sectarian alignment with induced fear, which is temporary and the Iraqi voter is finding out who is fear mongering and why, and learning quickly and building a healthy immunity from the mis-placed claims of Qaida and Baathist accusations.
Unfortunately, there are too many US Neocons in high places whose epistemologies are static and still think like your description. Their understanding of Iraq is superfluous, they selected the consociational form of democracy and instead of admitting their error of judgment they built a tolerance to the atmosphere of fear which leads to more sectarianism, like a self fulfilling prophesy. In other words, sectarianism and fear are cause and effect which are reversed, intentionally or not, by US policy makers in Iraq.